A Big Victory For Equality?

Have been through the Prop 8 opinion and dissents. It appears that this is a blockbuster pro-gay-rights decision, restricting the effect of Prop 8 to the effect of removing the designation of gay civil unions as "marriage," but upholding all equal rights previously declared by the Court; and, suggesting that if the opponents of gay rights were to try to restrict equal union rights for gays by constitutional change, such change would be an Amendment (not a revision) and thus would be procedurally much more difficult to accomplish.

Being able to lay claim to the word "marriage" is important, but in all other respects this appears to be a spectacular decision in favor of gay rights.

The decision leaves intact the holding of the Marriage Cases that gays have the fundamental "right to marry" under the California constitution, now and in the future; but unless and until the California constitution is again amended to the contrary, such unions cannot be called marriage.

Opponents of gay civil union rights could try another ballot initiative to expressly amend the constitution to ban such rights, but under the Court's ruling, that proposed amendment would have to ban such rights expressly to be effective. The Court's opinion makes clear that generally, amendments will not be interpreted to repeal constitutional rights by implication. The disfavor of repeal by implication is a longstanding legal principle, and the Court's use of it here is a deft way of sending this issue back to the political process while upholding gay civil union rights for the foreseeable future. Under this approach by the Court, opponents of gay civil union rights would have to word any future proposed amendments in such a way as to expressly ban gay civil union rights, and as a result, their ability to secure a sufficient number of petition signatures to get the amendment on the ballot, and then a majority of votes at the polls, will be all the more difficult.